United States v. Gary Davis, Jr. , 532 F. App'x 406 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4061
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY DAVIS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:12-cr-00331-CMC-1)
Submitted: June 24, 2013 Decided: July 11, 2013
Before WILKINSON, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James P. Rogers, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. William Kenneth Witherspoon,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Davis, Jr., pled guilty pursuant to a written
plea agreement to possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1) (2006). The district
court sentenced Davis to 180 months in prison, the mandatory
minimum sentence required by 18 U.S.C. § 924(e) (2006). On
appeal, counsel for Davis filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal but questioning whether the
district court conducted an adequate plea colloquy and whether
Davis’ sentence is reasonable. Davis has not filed a
supplemental pro se brief, despite notice of his right to do so.
We affirm.
Prior to accepting a guilty plea, a trial court,
through colloquy with the defendant, must inform the defendant
of, and determine that the defendant understands, the nature of
the charge to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty he faces, and the various
rights he is relinquishing by pleading guilty. Fed. R. Crim. P.
11(b)(1). The district court also must ensure that the
defendant’s plea was voluntary, was supported by a sufficient
factual basis, and did not result from force or threats. Fed.
R. Crim. P. 11(b)(2), (3). “In reviewing the adequacy of
compliance with Rule 11, this [c]ourt should accord deference to
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the trial court’s decision as to how best to conduct the
mandated colloquy with the defendant.” United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Because Davis did not move the district court to
withdraw his guilty plea, any errors in the Rule 11 hearing are
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525–26 (4th Cir. 2002). “To establish plain error, [Davis]
must show that an error occurred, that the error was plain, and
that the error affected his substantial rights.” United
States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if
Davis satisfies these requirements, we retain discretion to
correct the error, “which we should not exercise unless the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation
marks and brackets omitted). Our review of the record leads us
to conclude that the district court conducted a thorough
colloquy, ensuring that Davis’ plea was knowing and voluntary
and supported by an adequate factual basis.
At sentencing, Davis objected to his designation as an
armed career criminal based on the fact that he was convicted of
two of the predicate offenses on the same day. However, the
crimes for which he was convicted were “committed on occasions
different from one another,” arising out of “separate and
distinct criminal episode[s],” such that the district court
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properly overruled the objection. 18 U.S.C. § 924(e); United
States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995).
Moreover, the district court adequately explained the chosen
sentence. See United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009). Our review of the record therefore leads us to
conclude that Davis’ within-Guidelines sentence was neither
procedurally nor substantively unreasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Mendoza–
Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Davis, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Davis requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Davis.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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